Proposition 65 Warnings

On August 30, 2018, all Proposition 65 warnings will need to be updated to reflect the chemicals present and their dangers (cancer, birth defects, or reproductive harm). This change was effective 8/30/2016 and now the phase-out period for the old signs is coming to a close. The major changes are to the language used on the signs, please ensure that the new signs are in place by August 30, 2018 and that they are posted conspicuously and clearly.

A message from the Chief Counsel for the Office of Environmental Health Hazard Assessment:

The new regulations adopted by OEHHA that will be effective in August are non-mandatory “safe harbor” regulations. This means that businesses are not required to use them but can do so if they wish. If a business follows the safe harbor methods and content set out in the regulations, they are assured that the warnings they provide are “clear and reasonable”, as required by Proposition 65. The side-by-side comparison document on our website can be a useful tool to find those portions of the regulations relevant to your business, as it has a table of contents. See: https://oehha.ca.gov/media/downloads/crnr/side-sidearticle6.pdf

The regulations addressing exposures from petroleum products were developed in consultation with the Western States Petroleum Association and are patterned after the existing warnings in use at refineries and related facilities, though they are not exactly the same. The express content requirement for petroleum product exposures is in Section 25607.25.

The regulations also provide general guidance for providing environmental exposure warnings in sections 25604 and 25605, including content and certain size and color requirements. No specific font is required for these warnings, but the regulations do require the warning to be “posted in a conspicuous manner that is associated with the exposure for which the warning is being provided under the Act and is clearly visible under all lighting conditions normally encountered during business hours and under such conditions as to make it likely to be seen, read, and understood by an ordinary person” (Section 256oo.1(m)).

It is up to individual businesses to determine which warnings are required for their facilities and to choose an appropriate method for providing them. As noted above, a business may choose to give a warning with different content or via different methods than those set out in the regulations, as long as the business can show the warning is “clear and reasonable”. It is also possible that a business may need more than one warning depending on the types and levels of exposures they cause.

Our Office does not have enforcement authority under Proposition 65. The Attorney General’s Office, local prosecutors and individuals acting in the public interest enforce the law. You can find information about this on the Attorney General’s website here: https://oag.ca.gov/prop65, including various fact sheets:https://oag.ca.gov/prop65/faq.

All warnings must be “posted in a conspicuous manner that is associated with the exposure for which the warning is being provided under the Act and is clearly visible under all lighting conditions normally encountered during business hours and under such conditions as to make it likely to be seen, read, and understood by an ordinary person” (Section 25600.1(m)).

Consumer product exposure warnings: “must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use.”

Environmental exposure warnings: “must be provided in a conspicuous manner and under such conditions as to make the warning likely to be seen, read, and understood by an ordinary individual in the course of normal daily activity.”